Allowed

Shivadhar Singh v. State of Bihar

Patna HC20 Jul 2015CR. APP (DB)/439/1993

Case brief

AI extract

What is this about?

In three criminal appeals regarding murder and rioting, the High Court acquitted the accused, holding that the prosecution evidence was insufficient. The court found the eyewitnesses unreliable due to medical contradictions, delayed FIR registration, and non-examination of independent witnesses, granting benefit of doubt.

What did the court decide?

Conviction and sentences set aside; accused acquitted on benefit of doubt; bail bonds cancelled and sureties discharged.

Shivadhar Singh Vs State of Bihar — Murder and Culpable Homicide | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (DB) No.439 of 1993

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WITH

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Criminal Appeal (DB) No. 458 of 1993

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WITH

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Criminal Appeal (DB) No. 453 of 1993

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(AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE, DATED 30.09.1993, PASSED BY SHRI DAMODAR PRASAD, 3^RD ADDITIONAL SESSIONS JUDGE, ARRAH, IN SESSIONS TRIAL NO. 422 OF 1987, ARISING OUT OF KOILWAR POLICE STATION CASE NO.87 OF 1986.)

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Shivadhar Singh, son of Sitaram Singh, resident of village Pachaina, P.S. Koilwar, District Bhojpur (Ara)

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.... .... Appellant (IN CR. APP. (D.B.) NO. 439 OF 1993)

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WITH

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Dinesh Singh, son of Ram Bachhan Singh,

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Ramesh Singh, son of Late Badri Singh,

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Awadhesh Singh, son of Late Badri Singh,

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All are resident of village Pachaina, Police Station, Koilwar, District Bhojpur (Ara). .... .... Appellants (IN CR. APP. (D.B.) NO. 458 OF 1993)

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WITH

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Raghubanch Singh, son of Late Shri Motilal Singh, resident of village Pachaina, Police Station Koilwar, District Bhojpur. .... .... Appellant (IN CR. APP. (D.B.) NO. 453 OF 1993)

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Versus

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The State of Bihar ================= Appearance : (In CR. APP (DB) For the Appellant For the Informant For the State	.... .... Respondents (In all appeals) ========================================== Nos. 439 of 1993 and 458 of 1993 : Mr. Kanhaiya Prasad Singh, Sr. Advocate Mr. Rakesh Kumar Surendra, Advocate Mr. Sushil Kumar Singh, Advocate Mr. Surendra Singh, Advocate : Mr. Manoj Kumar, Advocate : Mr. M.N.Jha, APP
(In CR. APP (DB) For the Appellant	No. 453 of 1993) : Mr. Kanhaiya Prasad Singh, Sr. Advocate Mr. Rabindra Kumar, Advocate
For the Informant	: Mr. Manoj Kumar, Advocate

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Patna High Court CR. APP (DB) No.439 of 1993 dt.20-07-2015

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For the State : Mr. S.N.Prasad, APP

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=========================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE I. A. ANSARI) Date: 20-07-2015

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Under the judgment and order, dated 30.09.1993, passed, in Sessions Trial No. 422 of 1987, by learned 3^rd Additional Sessions Judge, Arrah, while the accused-appellants, namely, Raghubansh Singh, Shivadhar Singh, Dinesh Singh, Ramesh Singh and Awadhesh Singh, stand convicted under Sections 302 and 148 read with Section 34 of the Indian Penal Code, the accused-appellant, Shivadhar Singh, has also been convicted under Section 307 of the Indian Penal Code and Section 27 of the Arms Act, 1956. While the accused-appellants stand sentenced, for their conviction under Section 302 read with 34 of the Indian Penal Code, to suffer imprisonment for life, they stand sentenced, for their conviction under Section 148 of the Indian Penal Code, to undergo rigorous imprisonment for a period of six months. However, no separate sentence has been passed against accused-appellant, Shivadhar Singh, for his conviction under Section 307 of the Indian Penal Code and Section 27 of the Arms Act, 1956. All the sentences have been directed to run concurrently.

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2. The case of the prosecution, as unfolded at

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Patna High Court CR. APP (DB) No.439 of 1993 dt.20-07-2015

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the trial, may, in brief, be set out as under:

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(i) On 03.09.1986, at about 06:00 PM, when the first informant, Paramhans Singh (PW 1), accompanied by his brother, Shashi Bhushan Singh (since deceased), while returning home through their maize field, reached their paddy field, the first informant and his brother, Shashi Bhushan Singh, saw six accused, namely, Raghubansh Singh, Manoj Singh, Dinesh Singh, Shivadhar Singh, Ramesh Singh and Awadhesh Singh carrying farsa , bhala (i.e., spear), garasa and rifle rushing towards them. While accused Raghubansh Singh and Ramesh Singh were armed with farsa , accused Manoj Singh was armed with bhala (i.e., spear), accused Dinesh Singh and Awadhesh Singh were armed with garasa and accused Shivadhar Singh was armed with rifle. The informant also heard accused Shivadhar Singh exhorting others to chop off the heads of the first informant and his brother, Shashi Bhushan Singh. Out of fear, the informant and his brother began to run and while so running, they started raising hulla by saying ‘ bachao-bachao’ (save us-save us).

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(ii) While the first informant and his brother were so running away, accused Shivadhar Singh fired from his rifle aiming at the first informant and his brother. Out of fear, Shashi Bhushan Singh fell down; but the informant continued to run. In the meanwhile, all the accused brutally assaulted

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Patna High Court CR. APP (DB) No.439 of 1993 dt.20-07-2015

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Shashi Bhushan Singh by means of spear bhala (i.e., spear), garasa and farsa. Because of the assaults at the hands of the accused-appellants, Shashi Bhushan Singh started profusely bleeding and began to writhe in pain.

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(iii) As the accused were armed with deadly weapons, informant went towards his village; but on covering some distance, he saw the six accused persons aforementioned running away towards west, whereupon the informant came near his younger brother. Informant’s father, Chhathu Singh (PW 2), one Indradeo Singh and many others arrived at the place of occurrence.

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(iv) The injured was carried, on a cot by the informant, with the help of others, to the road and, then, taken to Koelwar Hospital. Seeing the serious nature of the injuries caused to Shashi Bhushan Singh, the doctor at Koelwar Hospital, referred the injured to Sadar Hospital, Ara. However, when the injured was brought to Sadar Hospital, Ara, the doctor declared the injured dead. The reason behind the occurrence was land dispute.

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(v) On arrival of the police at Sadar Hospital, Ara, PW 1 gave a statement, which was recorded in the form of his fardbayan, and treating the said fardbayan as First Information Report (Exhibit 3), Koilwar Police Station Case No. 87 of 1986 was registered, under Sections 147/148/149/302 of

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Patna High Court CR. APP (DB) No.439 of 1993 dt.20-07-2015

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the Indian Penal Code and Section 27 of the Arms Act, 1959, against the 6 (six) accused persons, namely, (i) Raghubansh Singh, (ii) Manoj Singh, (iii) Dinesh Singh, (iv) Shivadhar Singh, (v) Ramesh Singh and (vi) Awadhesh Singh.

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(vi) During investigation, inquest was held over the dead body of Shashi Bhushan Singh, which was also subjected to post mortem examination. On completion of investigation, charge sheet was laid, under Sections 147/148/149/302 of the Indian Penal Code and Section 27 of the Arms Act, 1959, against the accused aforementioned.

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3. At the trial, charges, under Sections 302 and 148 read with Section 34 of the Indian Penal Code, were framed against the 5 (five) accused persons, namely, (i) Dinesh Singh, (ii) Raghubansh Singh, (iii) Ramesh Singh, (iv) Shivadhar Singh and (v) Awadhesh Singh. As against accused Shivadhar Singh additional charges, under Section 307 of the Indian Penal Code and Section 27 of the Arms Act, 1959, were framed. The case against accused Manoj Singh was, however, made over to Juvenile Justice Board. All the remaining accused pleaded not guilty to their respective charges.

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4. In support of their case, prosecution examined altogether 05 (five) witnesses. The accused persons were, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and, in their examinations aforementioned,

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Patna High Court CR. APP (DB) No.439 of 1993 dt.20-07-2015

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they denied that they had committed the offences, which were alleged to have been committed by them, their case being that of denial. No evidence was adduced by the defence.

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5. Having, however, arrived at the finding that accused-appellants aforementioned had been proved guilty of the offences under Section 302 read with Section 34 of the Indian Penal Code and that accused Shivadhar Singh had also been proved guilty of offences under Section 307 of the Indian Penal Code and Section 27 of the Arms Act, 1959, learned trial Court convicted them accordingly. Following their conviction, sentences have been passed against the accused persons as mentioned above.

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6. Aggrieved by their conviction and the sentences passed against them, all the accused, as convicted persons, have preferred these two appeals.

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7. In view of the fact that accused-appellant, Shivadhar Singh, who had filed Cr. Appeal (DB) No. 439 of 1993, and the accused-appellant, Raghubansh Singh, who had filed Cr. Appeal (DB) No. 453 of 1993, have, admittedly, died on 30.07.1996 and 20.02.2013 respectively, both of these appeals have abated and shall accordingly stand disposed of.

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8. We are, therefore, now, required to consider the conviction of the accused-appellants, Dinesh Singh, Ramesh Singh and Awadhesh Singh and the sentences passed

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against them, their conviction and sentences having been impugned in Cr. Appeal (DB) No. 458 of 1993.

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9. We have heard Mr. Kanhaiya Prasad Singh, learned Senior Counsel, appearing for the appellants, and Mr. S. N. Prasad, learned Additional Public Prosecutor, appearing for the State. We have heard also Mr. Manoj Kumar, learned Counsel, appearing for the informant.

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10. In order to correctly appreciate the evidence, which has been adduced by the prosecution against the accused-appellants, it is imperative that we take note of the evidence of Dr. Akhauri Kailash Bihari Singh (PW 4), who had, admittedly, conducted, on 04.09.1986, at about 10.30 AM, post mortem examination on Shashi Bhushan Singh’s dead body and found the following ante mortem injuries:

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“(1) Incised wound 10” x 2” x brain cavity deep over the top of head near occipital region. Blood and blood clots were present all over the wound.

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On further exploration and dissection of the skull, skull bone, the meninges and brain matter were found to have cut up to the depth of 1/2". Blood and blood clots were also present over the brain matter.

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(2) One incised wound 14” x 3” x right scapular bone deep over the back of right side of the upper part of scapular region.

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On dissection, right scapular

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bone were found cut of the size 12”. Underneath muscles and blood vessels were also cut. Blood and blood clots were present over the bone.

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(3) An incised wound 12” x 2/2” x chest cavity deep over the back right side just above the injury no.2.

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On dissection, all the deeper structures like muscles, ribs 2^nd and 3^rd , upper part of the right lungs were found cut. The ribs 2^nd and 3^rd were also found cut. Blood and blood clots were present over the wound.

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(4) On exploration of abdomen and thorax, all visceras, except right lung were found within normal limit. Stomach contained semi digested rice and bladder contained nears 2 ounce of urine.

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11. In the opinion of the doctor (PW 4), death was caused due to shock and hemorrhage resulting from the injuries aforementioned, the injuries having been caused by heavy and sharp cutting weapons.

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12. In his cross-examination, the doctor (PW 4) has clarified that none of the injuries on the said body was piercing or penetrating injury. It is also clarified by doctor (PW 4) that bhala is a piercing weapon, whereas farsa is a curve weapon and garasa is a semi-circular weapon. The doctor has further clarified that had he found any semi-circular, circular or curve injury, he would have mentioned this fact in Exhibit-2,

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Patna High Court CR. APP (DB) No.439 of 1993 dt.20-07-2015

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meaning thereby that none of the injuries, found on the said dead body, was caused by bhala (i.e., spear), farsa or garasa.

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13. Neither the finding of the doctor nor his opinion, with regard to cause of death of the said deceased and/or his opinion with regard to the nature of weapon, which might have been used, for causing assault on, and death of, the said deceased, were disputed either by the prosecution or by the defence. This apart, we, too, do not notice anything inherently incorrect or improbable in the evidence given by the doctor (PW 9).

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14. Before proceeding further, we may point out that the Investigating Officer was not examined in the present case, with the result that the contradictions, which had been put to the prosecution witnesses by the defence, could not be put to the Investigating Officer. Thus, grave prejudice has been caused to the defence and, if this lapse, on the part of the prosecution, is allowed to be ignored, it would, undoubtedly, as is being pointed out, cause serious miscarriage of justice.

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15. According to the evidence of PW 1, on the day of occurrence, at about 6 o’clock in the evening, he, accompanied by his brother, Shashi Bhushan Singh, was returning home and when they came to their paddy field, he saw accused Shivadhar Singh, armed with a rifle hanging from his shoulder and a hasuli (a curved, but sharp-edged

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weapon) in his hand, accused Ramesh Singh, holding a farsa, accused Awadhesh Singh, holding a garasa , accused Raghubansh Singh armed with a farsa and, on being exhorted by Shivadhar Singh, all the accused started running towards PW 1 and his brother, Shashi Bhushan Singh. Shouting for help to save themselves, PW 1 and his brother started running towards their village, but accused Shivadhar Singh fired bullet from his rifle and though the bullet did not hit PW 1 or his brother, Shashi Bhushan Singh, yet, out of fear, PW 1’s brother, Shashi Bhushan Singh, fell down on the ground and the accused began assaulting him. PW 1 saw the accused assaulting his brother from a distance of about 100 yards and, on his shouting for help, Brahmeshwar Singh (PW 3), Ajay Kumar Singh (not examined), Krishna Singh (not examined), Chhathu Singh (PW 2), Indradeo Singh (not examined) and others came and saw the occurrence and, thereafter, the accused fled away.

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16. It is also in the evidence of PW 1 that he found his brother unconscious, but writhing in pain and, with the help of others, he (PW 1) took the injured to the Koilwar Hospital and, then, to the Sadar Hospital at Ara, where the doctor declared the injured dead. It is also in the evidence of PW 1 that a Sub-Inspector of Police came to the hospital and recorded, as fardbeyan, the statement of PW 1, which PW 1

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Patna High Court CR. APP (DB) No.439 of 1993 dt.20-07-2015

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signed after the contents of his statements were read over to him, and Ajay Kumar Singh (not examined) also put his signature on the said fardbeyan . The fardbeyan has been proved as Exhibit-1. Why Ajay Kumar Singh was not examined, the evidence on record provides no answer.

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17. Interestingly enough, while PW 1 states that when the accused were running away, many of his co-villagers had seen the accused fleeing away, he was unable to recall any one’s name.

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18. It is important to note that the evidence of PW 1 that on witnessing the accused armed with deadly weapons, he, out of fright, started running away and, on reaching Dharampur Deviasthan, he started raising hulla and after 15 minutes, people started assembling there from their village. PW 1 has added in his evidence that on witnessing the accused, he started running away and heard the sound of firing. In his cross-examination, PW 1 has clarified that after he had heard his brother’s cries and, on returning back to the place of occurrence, he noticed injuries on the person of his brother.

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19. When the evidence of P.W. 1 is considered in the light of the medical evidence on record, we find that according to the evidence of PW 1, the said deceased was assaulted by garasa , farsa and bhala (i.e., spear). The doctor

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has, however, clarified, in cross-examination, apart from the fact that he did not find any piercing wound, which could have been caused by a bhala (i.e., spear), did he find any curved wound? which could have been caused by garasa . Thus, the weapons, which have been attributed by PW 1 as the weapons used by the accused-appellants, do not correspond with the injuries said to have been sustained by the deceased.

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20. Coupled with the above, when PW 1 was running to save his own life and he did not even stop to pick up his brother, it is impossible to hold that he had seen the assault on his brother and yet PW 1 has claimed that he had seen assault on his brother Shashi Bhushan Singh. Similarly, while, at one place, in his evidence, PW 1 claims that while running away, he raised hulla , his evidence, in the cross-examination, shows that it was when he reached devisthan, which is at a distance of 150 yards from the place of occurrence, that he raised hulla and about 50 persons assembled there.

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21. If the description of the occurrence given by PW 1 were true, the deceased would have sustained, at least, one piercing or punctured wound. This apart, since all the accused are claimed to have assaulted the said deceased, there would have been, at least, four injuries, whereas the deceased is found to have been sustained only three injuries, all the injuries being incised wounds.

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22. Considered thus, it becomes clear that the evidence of PW 1 cannot be implicitly relied upon. Curiously enough, when PW 1 was running away to save his own life so much so that he did not even stop, there was, reasonably speaking, no question of his looking back and witnessing assaults on his brother. No wonder, therefore, that PW 1 does not even claim that he turned back and saw his brother being given blows by the assailants. His degree of fear can well be appreciated that he admits that while running away, he does not recall whether he heard cries of his brother or not and on return to the place of occurrence, he saw his brother lying in injured condition.

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23. So far as PW 2 is concerned, his evidence is that he had gone to the maize field at the time of occurrence and heard sound of firing and, on being attracted by the hulla raised by PW 1, asking for help, he went to the direction from where he had heard his son raising hulla and when he reached there, he saw his son, Shashi Bhushan Singh, being assaulted by the accused. In his evidence, PW 2 has also described various weapons in the hands of the accused, the descriptions of the weapons being the same as given by PW 1. When it was suggested to this witness (PW 2) that he had not stated before the police about having seen the occurrence or as to which weapon was carried by whom, his reply was, “ It is not a fact

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that I had not stated to the Sub Inspector of Police that I had seen the said Raghubansh Singh and Ramesh Singh assaulting with farsa (sharp edged weapon), Manoj Singh with bhala (spear), Dinesh Singh and Awadhesh Singh with garasa (sharp edged weapon) and Shivadhar Singh with fasuli (sickle) with my own eyes. I had also not stated to the Sub Inspector of Police that I had seen all the said six accused persons going towards the village only and asked them on the way as to why the hulla was being raised there. They told me to go and see there. When I reached there, I saw my son Shashi Bhushan Singh lying there and many villagers had assembled over there” . The suggestion of the defence, put to PW 2, could not be proved, because the Investigating Officer was not made available for cross-examination by the defence. Notwithstanding, therefore, the fact that the said contradiction was not proved, the fact remains that since the defence was disabled from putting the contradictions transpiring from the evidence of PW 2 to the Investigating Officer, the Court could not have relied, and ought not to rely, now, upon the evidence given by PW 2. We are, therefore, unable to place any reliance on the evidence of PW 2.

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24. Coming to the evidence of PW 3, we notice that according to this witness, when he heard PW 1 raising hulla asking for help, he (PW 3) rushed towards the place from

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Patna High Court CR. APP (DB) No.439 of 1993 dt.20-07-2015

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where the hulla was being raised and saw the accused going away the and the weapons, which the accused were carrying, bore blood stains and, on arriving at the place of occurrence, he (PW 3) saw Shashi Bhushan Singh lying in seriously injured and came to know about the occurrence from the witnesses, who had assembled there.

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25. In view of the fact that neither the evidence adduced by PW 1 nor the evidence adduced by any other witnesses examined by the prosecution supports the claim of PW 3 as to who had assaulted Shashi Bhushan Singh, the evidence given by PW 3 that he was reported about the occurrence by the witnesses, who had gathered there, cannot, but be regarded as hearsay .

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26. While considering the evidence of PW 2, it is necessary to note that he (PW 2) has not supported the evidence of PW 3 as regards noticing of blood stains on the weapons, which the accused were allegedly carrying. The evidence of PW 3 cannot, therefore, be regarded as a wholly believable or reliable witness.

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27. What also cannot be ignored and must not be ignored is that though the occurrence took place, on 03.09.1986, at about 7:00 P.M., the fardbayan (Exhibit-1) is shown to have been lodged on 03.09.1986, at 10:15 P.M. and the First Information Report is shown to have been registered

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on 04.09.1986, yet the First Information Report was received by the Magistrate concerned on 06.09.1986.

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28. Clearly thus, not only the registration of the First Information Report, but also its despatch to the Court was inordinately delayed. This delay has not been explained by the prosecution nor is any explanation available in this regard from the evidence on record.

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29. Considered in this light, it becomes clear that in the case at hand, the possibility of the accused having been falsely implicated or some innocent having been roped in along with guilty ones cannot be wholly ruled out. We can also not ignore the fact that though, according to the evidence of PW 1, many of his villagers had witnessed the accused running from the village, none except the informant, his brother and his father was examined as witness. When independent witnesses were available and have not been examined, the learned trial Court ought to have drawn adverse inference against the prosecution, the inference being that had independent witnesses been examined, they would not have supported the case of the prosecution and that was the reason why the witnesses were withheld.

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30. The non-examination of the independent witnesses, thus, casts a serious doubt on the veracity of the evidence of the prosecution witnesses, whose evidence,

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otherwise also, stand belied by the medical evidence on record.

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31. Because of what have been discussed and pointed out above, we are clearly of the view that none of the witnesses, namely, PW 1, PW 2 and PW 3 can be regarded and held as wholly reliable witnesses and even if their evidence is not rejected as wholly unreliable, their evidence would fall, at the most, in the category of those witnesses, who are neither wholly reliable nor wholly unreliable.

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32. It is trite that the witnesses, ordinarily, fall into three distinct categories, namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If the witness is wholly reliable , his evidence can be implicitly relied upon and such a witness’s testimony can be made basis for conviction of an accused. Similarly, when a witness is found to be wholly unreliable , no reliance can at all be placed on his evidence and his evidence has to be rejected outright. When, however, a witness is found to be neither wholly reliable, nor wholly unreliable , his evidence cannot be accepted as true unless his evidence is found to have been corroborated by some credible independent evidence, direct or circumstantial.

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33. The evidence of the eye-witnesses, which the prosecution has adduced in the present case, cannot be

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safely relied upon unless the same is found to have been corroborated by some credible independent evidence, direct or circumstantial.

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34. It is also an undisputed proposition of law that one infirm witness cannot be treated to have corroborated the evidence of another infirm witness meaning thereby that witnesses of same brand cannot be taken to have corroborated each other. Thus, when a witness is neither wholly reliable nor wholly unreliable , his evidence cannot be taken to have been corroborated by a witness of the same brand, namely, a witness, who is neither wholly reliable nor wholly unreliable , for, evidence is not to be counted, but weighed. It is not the number of the witnesses, which determines the outcome of a trial; rather, it is the inherent falsity or truth of the evidence given by the witness, which decides the outcome of trial. If each one of a large number of witnesses is found to be wholly unreliable , their evidence cannot become acceptable as true merely because a large number of similar brand of witnesses has corroborated each other.

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35. A reference, with regard to the above position of law, may be made to the case of Muluwa, S/o Binda and others Vs. The State of Madhya Pradesh, [AIR 1976 SC 989] , wherein the Supreme Court has observed as

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follows :

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“It is elementary that the

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evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed not counted . Since the evidence of P.Ws. 5 and 6 suffered from the same infirmities as that of Smt. Jugatia, it cannot be said that the trial Judge had no basis, whatsoever, for stigmatising it as unreliable.”

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(Emphasis is added)

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36. Situated thus, it is clear that merely because the evidence given by PW 1 has been corroborated by the evidence of other witnesses aforementioned, the evidence of PW 2 and 3, cannot be made basis for holding PW 1 a truthful witness, when he is a witness, who is neither wholly reliable nor wholly unreliable, for, one infirm witness cannot be treated to have corroborated the evidence of another infirm witness.

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37. At any rate, therefore, in the light of the evidence on record and the law relevant thereto, the accusedappellants deserve to be accorded, at least, benefit of doubt.

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38. In the result and for the forgoing reasons, we allow this appeal. The impugned conviction of the accused-appellants and the sentences passed against them by

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the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offences, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt.

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39. Since all the accused-appellants are on bail, their bail bonds are hereby cancelled and their sureties shall accordingly stand discharged.

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40. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.

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(I. A. Ansari, J.)

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(Vikash Jain, J.)

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N.A.F.R. Chandran/Pawan

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U T

Shivadhar Singh v. State of Bihar

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Shivadhar Singh v. State of Bihar

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